| Matter of Samuel v Samuel |
| 2009 NY Slip Op 05708 [64 AD3d 920] |
| July 9, 2009 |
| Appellate Division, Third Department |
| In the Matter of Gary Samuel, Respondent, v Jennifer Samuel,Appellant. (And Three Other Related Proceedings.) |
—[*1] Gary Samuel, Hudson Falls, respondent pro se. Robert M. Kelly, Law Guardian, Saratoga Springs.
Malone Jr., J. Appeal from an order of the Family Court of Saratoga County (Abramson, J.),entered May 23, 2008, which, among other things, granted petitioner's application, in aproceeding pursuant to Family Ct Act article 6, for modification of a prior order of custody.
The parties are the divorced parents of a daughter (born in 2000). In March 2006, FamilyCourt (Hall, J.) entered an order upon the parties' stipulation whereby petitioner (hereinafter thefather) and respondent (hereinafter the mother) shared joint legal custody of the daughter, themother had primary physical custody and the father was entitled to regular parenting time. InOctober 2007, the mother was arrested after she hit the daughter with a belt; she pleaded guiltyto endangering the welfare of a child, was placed on probation and ordered to attend parentingclasses. Following the incident, the father promptly commenced a proceeding seeking solephysical custody of the daughter.[FN*]Family Court (Abramson, J.) temporarily placed [*2]the daughterin the father's custody and, following a fact-finding hearing, modified the 2006 order by grantingphysical custody to the father and regular parenting time to the mother. The mother appeals andwe now affirm.
A petitioner seeking modification of an existing custody arrangement is required todemonstrate that, because of a significant change in circumstances, modification is necessary tofurther the child's best interests (seeMatter of Passero v Giordano, 53 AD3d 802, 803 [2008]; Matter of John HH. v Brandy GG., 52AD3d 879, 879-880 [2008]; Matterof Diffin v Towne, 47 AD3d 988, 990 [2008], lv denied 10 NY3d 710 [2008]).Family Court's determinations will remain undisturbed where, as here, a sound and substantialbasis for them exists in the record (seeMatter of Timothy V. v Rene W., 63 AD3d 1210, 1211-1212 [2009]; Matter of Filippelli v Chant, 40 AD3d1221, 1222 [2007]). Although Family Court's decision does not specifically address whetherpetitioner demonstrated a sufficient change in circumstances, our review of the recordsubstantiates the court's fact-findings, and we are satisfied that circumstances had changed suchthat a review of the daughter's best interests was necessary (see Matter of Bedard v Baker, 40 AD3d 1164, 1165 [2007]; Matter of Drew v Gillin, 17 AD3d719, 720 [2005]). Most significantly, the mother admitted at the fact-finding hearing that shestruck the daughter with a belt. The record reflects that she was arrested, charged with felonyassault and ultimately pleaded guilty to endangering the welfare of a child. In addition, althoughthe mother had physical custody of the daughter until November 2007, she was unable to namethe daughter's teacher, nor had she visited the daughter's school at all during the 2007-2008school year.
Next, Family Court was required to look to the child's best interests in crafting a newarrangement, considering a range of factors (see Matter of Zwack v Kosier, 61 AD3d 1020, 1022 [2009]; Matter of John HH. v Brandy GG., 52AD3d 879, 880 [2008]; Matter ofGoldsmith v Goldsmith, 50 AD3d 1190, 1191-1192 [2008]). According due deferenceto the court's credibility determinations, we find a sound and substantial basis in the record for itscustody determination (see Matter of Zwack v Kosier, 61 AD3d at 1022; Matter of Diffin v Towne, 47 AD3d988, 990 [2008], lv denied 10 NY3d 710 [2008]). Among other reasons, and inaddition to the mother's admission to having struck the daughter, Family Court cited the father'scare and his attention to her physical and emotional health.
Spain, J.P., Kane, Kavanagh and McCarthy, JJ., concur. Ordered that the order is affirmed,without costs.
Footnote *: None of the related proceedingsis at issue in this appeal.